Originalism, Common Goodism, and Conservative Constitutionalism

Adrian Vermeule responds to Judge Bill Pryor, and others comment on "Common Good Constitutionalism"

Earlier this month I noted Judge Bill Pryor's recent Federalist Society lecture, "Against Living Common Goodism," criticizing Harvard law professor Adrian Vermeule's Common Good Constitutionalism. Professor Vermeule and Conor Casey of the University of Liverpool School of Law & Social Justice have now replied in an essay forthcoming in the Harvard Journal of Law & Public Policy Per Curiam.  Here is the abstract from SSRN:

This short essay responds to several lectures and talks given by Chief Judge William Pryor Jr. of the United States Court of Appeals for the 11th Circuit critiquing common good constitutionalism. We demonstrate that the arguments advanced by Chief Judge Pryor in favor of originalism badly misfire, permit the very things Judge Pryor wants to rule out, and beg the critical questions about the classical tradition. In the end, they amount to little more than argument by slogan.

Meanwhile, Liberty Fund's Law & Liberty site has posted "A Return to Classical  Law?", a symposium on Vermeule's book, with contributions from several noted scholars. These contributions are as follows:

Originalism for the Common Good
John O. McGinnis

A Common Good Requires a Common People
Jesse Merriam

Uncommonly Bad Constitutionalism
James M. Patterson

Policing Common Good Constitutionalism
James R. Rogers

Classical Historicism?
Paul Seaton

And so the discussion and debate continues.

Comments

[GKHoffman]

"...and beg the critical questions about the classical tradition." Are the Professors using beg the question to mean avoid the question?

[ReaderY]

One of the obvious limits of pure textualism is that a society that had aliens come in soaceships from Mars and interpret everything solely through dictionaries would soon be in chaos. There has to be a context, a body of assumed knowledge and meaning that the text implicitly refers to. One of the key functions of advocacy is to formulate a context which tends to result in interpreting the text in ones preferred direction.

So it’s not surprising that ideological advocates would formulate ideological contexts which tend to lead to textual interpretation coming out their preferred way. And I tend to agree that in this respect, there isn’t much difference in method, although there of course is a difference in the preferred direction, between “natural law,” “common good,” “progressive,” “living constitutionalism,” and various other formulations.

The general method here, as so often, is to take the voices in ones head and treat them as articulating objective statements and supplying one with objective information about the world, to confuse “I think thus” with “thus it is.” Natural law for example is a formulation of belief, not an objective fact.

Ultimately, democrat civil society requires frequently deferring to other people’s opinions about how things should be and being less certain that ones own opinion is the only possible reasonable one. The imposition of rigid ideologies, even with the best of intentions and in the service of freedom, tends to lead to authoritarianism.

This means, as the ancient Skeptics taught, that one has to start with a presumption that tradition got things tight. That presumption can be defeated - the more severe of the Skeptics’ claims is no basis for a society. But democratic civil society nonetheless requires persuading a majority for change, and a larger majority if not near consensus for really major, fundamental change.

[ReaderY]

Sorry, that tradition got things right.

Of course tradition has gotten many things wrong. But if we want to avoid authoritarianism, we often have no choice but to let people learn that for themselves, the hard way, when they won’t listen to us.

[Aemon McGarret]

Thomas Jefferson comes to mind.

[Jon S]

Is anyone besides this Vermeule guy actually supporting this common good nonsense? Seems like he has created a nice straw-man to argue against for others

[David Nieporent]

Orin asked this exact question on Twitter, and didn't really get much in the way of other examples.

[Cal Cetín]

I think that material in Vermeule's book can be split into *two* books, one of them good and one of them bad.

The first book would defend the classical legal tradition, which is to acknowledge the existence of a natural law and a law of nations, and to read the positive law of particular countries - if the positive law is ambiguous - to harmonize with the natural law and law of nations. Also, the natural law and law of nations have a literature which go beyond "if it feels good, do it."

The second book would be the bad one, and it would claim that the classical legal tradition means interpreting the U. S. Constitution to justify a powerful federal administrative apparatus, below which are states which defer to the federal government, and below both of which are claims of individual rights, which as a rule have to take a back seat to both kinds of authority.

I'm not sure the natural law requires such a set-up, and I'm certainly not sure that there's enough vagueness in the Constitution as to fit the supreme federal administrative state into it - though to be fair the progressive constitutionalists have done it too.

But Vermeule's specialities include federal administrative law, it's what he knows and loves, so it's what he's going to put into the constitution - not the best reassurance for textualists - much less for originalists.

[AmosArch]

While I'm not exactly a conservative living constitutionalist I can see the value of having such a movement to counterbalance leftist living constitutionalism rather than conservatives just being a passive roadblock that simply slows leftist attempts to dismantle society.

[Queen Amalthea]

"It is not enough for the knight of romance that you agree that his lady is a very nice girl — if you do not admit that she is the best that God ever made or will make, you must fight. There is in all men a demand for the superlative, so much so that the poor devil who has no other way of reaching it attains it by getting drunk. It seems to me that this demand is at the bottom of the philosopher's effort to prove that truth is absolute and of the jurist's search for criteria of universal validity which he collects under the head of natural law. "

[Cal Cetín]

I think that's Oliver Wendell Holmes, Jr. - let me check.

[Cal Cetín]

yes

[Cal Cetín]

"Natural Law," by Oliver Wendell Holmes, Harvard Law Review , Nov., 1918, Vol. 32, No. 1 (Nov., 1918), pp. 40-44

The knight quote is on...well, it's the very first sentence in the article.

On p. 42 -

"...for legal purposes a right is only the hypostasis of a prophecy - the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it - just as we talk of the force of gravitation accounting for the conduct of bodies in space."

That sounds just like the Founding Fathers! /sarc

[Cal Cetín]

"...as Holmes got out of the carriage, [Learned] Hand bade him farewell with that judge-to-judge commonplace, 'well, do justice!' Holmes' whole demeanor changed and he shouted to the coachman to stop. 'Never say that to me again,' he exclaimed to Hand. 'I don't do justice. I simply enforce the rules.'"

/American Bar Association Journal, Vol. 47 (October 1961), 990

[Queen Amalthea]

I doubt you meant it this way, but yes, that's a great Holmes quote. Back in the day conservatives used to like it as a response to 'judicial imperialism.'

[Cal Cetín]

So much the worse for conservatives, then. Holmes promised to "administer justice without respect to persons,"

https://www.supremecourt.gov/about/oath/textoftheoathsofoffice08-10-2009.pdf

and one would have to be a clever sophist indeed to see the difference between doing justice and administering justice.

[Queen Amalthea]

"The knight quote is on...well, it's the very first sentence in the article."

Yeah, he led with the best quote.

"That sounds just like the Founding Fathers!"

There were a lot of Founding Fathers, some of their thoughts might surprise you on this topic. Also, don't fall for the trap of thinking their thoughts were encapsulated in the political documents they wrote. They were often quite consciously propagandizing.

[Cal Cetín]

I'm not trying to read their minds, they don't comment on the Internet so my Helm of Telepathy doesn't work on them.

[Aemon McGarret]

Thomas Jefferson comes to mind.

[Sarcastr0]

mad_kalak, AmosArch, are really bad folks to have in any kind of pluralistic country. Ad hock maximal victory and to hell with the consequences!

This discards how you build a lasting civilization: institutional continuity.

[Aemon McGarret]

The hard fact to swallow is that everything that has ever been said, all of the constructions of absolutes; Truth, Natural Rights, all of the religions, philosophies, laws, sciences & arts, are just stories that people made up. They are just words. Their existence is entirely in our subjective understanding. The noises & marks on paper etc. are meaningless on their own.
Written language is text. It expresses or describes human understanding. That understanding is the Spirit of that text. They are two aspects of the same thing. Like light & dark or Time-space. The assertions of objectivity & fidelity to original meaning have proven to be no match for having an agenda in actual practice. Separating the text from its' underlying spirit & meaning allows every bit as much mischief as the horrors of seeking a good outcome. There is a balance. And the only place to look for the balance point is human understanding. The text will be some sort of simplified model or caricature at best.
Explicitly excluding the idea & goal of a good, fair, or just outcome looks like cutting off your nose & blinding yourself to spite your face.

[Stephen Lathrop]

Separating the text from its' underlying spirit & meaning allows every bit as much mischief as the horrors of seeking a good outcome. There is a balance. And the only place to look for the balance point is human understanding.

A point well made, but almost never fully appreciated.

An advantage and disadvantage of text is that it endures. Endurance encourages hope that meanings from one era may be handed down intact to a subsequent era. But human understanding from a previous era is almost always revolutionized—and in its original context mostly forgotten—before being handed down.

Only diligent study during the latter era offers any prospect of recovering the human understandings (the context) which informed the text at the time it was created. A challenge that study must overcome is to forget and exclude utterly every occurrence or intellectual transformation which post-dated the text's creation.

By that massive subtraction, the original context can become accessible. A problem is, almost all that original context, being a record written down even longer ago than the American founding era, has never been read by the so-called originalists so eager to say what a founding era text means.

Not many American lawyers and judges are conversant at all with original records of the 1500s, 1600s and early 1700s which gave original context to founding era documents. What they do know is typically only a smattering of laws and cases—far less than even 1% of the relevant historical record.

Thus, subsequent things can have no influence to contribute, because they were unknowable at the time studied. It is not enough to know what you think a text means. You must be certain to exclude every possibility bearing on what it cannot mean. That is something almost impossible to do for anyone without specialized training in academic history. It is daunting for them.

The only process known to enable that is to study historical records from the era in question so broadly and so thoroughly that the scholar gives himself—from the sources then available, and not from others—what amounts to the same academic and practical education that an educated person of that era might bring to interpretation. That means reading every kind of document which survives, but mentally excluding everything which post-dates the time under study.

Every subsequent imposition based on occurrences during the interval between that era and this one—for instance, everything which was influentially thought, and everything which strikingly happened, in every field of human activity and scholarshp, during the 19th and 20th centuries—will then stand out as a novelty to the scholar. If some trace of that latter knowledge creeps into the contextual interpretation, it will create the degree of surprise in the properly prepared historian which a person living at the time studied would also have registered. Well-trained historians have mastered the art of bewilderment when they encounter anachronisms.

You cannot say what a founding era context legitimately includes, until you are equipped to recognize instantly what it was impossible to know. That notion almost never occurs to would-be originalists, who suppose unreflectively that the context they wake up with every morning is a tool adequate to discern antique meaning. That present-minded context is composed overwhelmingly of stuff it was impossible for a founding era person even to think about. Every conclusion based on it is inevitably bogus.

[Noscitur a sociis]

Haven't completely reformed American jurisprudence in the preferred fashion ≠ "haven't delivered any of the goods."

If you don't see how the originalist justices have moved the law in a significantly different direction than the way things stood in 1970, I suggest you talk to some of the liberals around here.

[Jon S]

Haven't fully delivered the goods on some social issues, but on issues that benefit the Republican Party (e.g., voting rights, gerrymandering, etc.), they've been fantastic. And same for big business.

[Dilan Esper]

It's really wrong to say that Republicans controlled the Court for 50 years, and Democrats who participate in debates about the judiciary need to stop this lie. Several Republican justices voted with the liberals on important cases. A majority =/ control.

[Jon S]

The "correct presumption" was determined by Congress to be that it was still necessary, and the 15th Amendment explicitly gives that power to Congress. Not very originalist of them to overrule Congress's conclusion.

[Brett Bellmore]

"Put it this way, by the time you're saying X or Y is protected by an amendment, you've already lost the culture war on the issue, "

Sort of, with the proviso that we don't have one uniform culture, and often you might be saying X or Y is (or isn't!) protected by an amendment because you lost the culture war among one group that's well positioned to prosecute it, but haven't lost the war among some other, perhaps larger, group that isn't.

You'd think, naively, that in a democracy whoever had the most "soldiers" would automatically win the culture war, but in real life, holding the high ground can matter more. And a fair number of culture wars have been won, not on the basis of raw numbers, but by having the people who agree with the winning side concentrated in the places that get to make decisions.

For instance, SSM was winning in the courts and the legislatures, (In the latter mostly by deliberately ineffectual opposition to the courts.) even as it kept losing popular votes. It didn't have the numbers, but what numbers it did have occupied the high ground.

The one culture war the left hasn't been winning, gun control, is due to really not having the numbers, to the point where enough of the time the legislators didn't dare be ineffectual.

[Bob from Ohio]

"moved the law in a significantly different direction than the way things stood in 1970"

What pre-1970 case has been reversed? Nothing significant.

We have Obergfell and Bostock just the last decade so the leftward Warren and New Deal lurch has barely been slowed down.

[bernard11]

OTOH, those of us who think, correctly, that the received wisdom was wrong in some instance bear the consequences of it not being rejected.

Your formulation simply assumes that received wisdom is correct, and that challenges will inevitably prove mistaken..

[bernard11]

Beg the question much?

[bernard11]

I don't think even Chesterton would claim that his fence was always beneficial, and indeed, in his case, it guarded some pretty vile ideas.

As for the copybook headings, while they may contain some solid fundamental wisdom, those who rely on your sort of argument often, I find, mix in some pretty fundamental stupidity and immorality.

[Queen Amalthea]

"Human nature stays the same, though technology changes. "

Lazy bs. What evidence that 'human nature stays the same?' I mean, the other day I read about how scientists think that wolves in N. America today are generally more shy than wolves were in colonial times because shy wolves who avoided humans were naturally selected when humans began killing most of them off. So even if you're trying to style yourself as some biological imperative type of guy, if freaking *wolf nature* can change why in the world wouldn't one think human nature doesn't?

[bernard11]

I see determined efforts to make it difficult for Black people to vote, which inevitably denies some of them the ability to do so.

But that is something of a red herring anyway. If the law "deserved to be removed" it was the business of Congress to do so, not the Supreme Court, with bogus arguments about the dignity of the states, and how those who are dry obviously don't need an umbrella.

It was a shameful decision.

[bernard11]

Pluralistic countries work, sorta

Seems to me they work just fine.

The US, whatever its failings, has been pretty successful. Would you consider Canada "pluralistic?" They seem to be doing fine.

[Queen Amalthea]

Did you cite *Israel* as a 'homogeneous' society?

Bwahahaha!

Have you ever been there? Israel is about 3/4 Jewish (that in itself is hardly 'homogeneous'), but even if that is supposed to qualify within that population itself they come from a very diverse national ancestry and have lots of religious diversity (Haredim, religious Zionist, Secular, etc.).

[SRG]

"It was a shameful decision."

It was indeed, and was yet another example of SCOTUS's being engaged in fact-finding and reaching the wrong factual conclusions.

[Brett Bellmore]

Chesterton never said you couldn't remove the fence. Just that you'd better be sure you know why it's there before you remove it.

[Brett Bellmore]

I think on a lot of measures the US used to be pretty successful, but that for the last few decades we've been mostly coasting on the basis of past successes.